Trademark Knowledge: Understanding Disclaimers
When you apply for a trademark, a "Disclaimer" is a very important rule you must know. In short, it means you agree that you do not own the exclusive right to use certain common words, pictures, or symbols in your trademark. In other words, you can put this word in your trademark, but you let the public and your competitors use it freely. You will not take legal action against them for using it.
Why is a "Disclaimer" needed?
The core value of a trademark lies in its "distinctiveness," meaning it must allow consumers to identify the source of the brand immediately. If a trademark contains public terms commonly used by the public, the authorities will require the applicant to disclaim the exclusive right to that specific part to maintain fair market competition. This serves two main purposes:
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Avoiding market monopolies: If a fruit company registers its trademark as "Ah-Ming Fresh Sweet Apples" without disclaiming the exclusive right to "Fresh Sweet Apples," other fruit merchants might be unable to use these everyday descriptive words in their advertisements or packaging. This is clearly unfair to market competition.
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Improving trademark approval rates: If a trademark contains text that describes product characteristics, it would originally be rejected by the examiner on the grounds of "lacking distinctiveness." By declaring a "disclaimer," the entire trademark can usually pass the review smoothly and be successfully registered.
Common types that require a disclaimer
When the following elements appear in a trademark, they usually cannot obtain exclusive rights and must be disclaimed during the application or examination process:
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Descriptions of goods or services: Such as "Technology," "Multi-functional," "Natural," or "Handmade."
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Geographic names and origins: Such as "Taipei," "Taiwan," or "Tokyo" (indicating the place of origin or service location).
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Generic industry names: Such as "Cafe," "Clinic," "Studio," or "Co., Ltd."
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Surnames or common names: Such as "Chan's" or " Cheung’s"
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Simple numbers or years: Such as "2026" or "No.1."
Legal effects after a disclaimer
The legal effects are mainly reflected in the following three aspects:
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The trademark as a whole is still protected: The "overall visual combination" of the trademark is still fully protected. Others are not allowed to directly copy or highly counterfeit your trademark design.
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Cannot sue for infringement on that part alone: You cannot file an infringement lawsuit against others simply because they independently used the words for which you declared a disclaimer.
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It still constitutes infringement if others copy the overall design: If a competitor intentionally imitates your layout and font, and maliciously uses homophones or extremely similar words, it still constitutes an infringement as long as the overall appearance causes consumer confusion in the market.
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